provisions are silent, however, with respect to the question of whether compensation is to be paid to landowners who are not required to alter existing obstructions, but are only limited in the use of their land by the maximum height restrictions imposed. While judicial review is provided by section 3106 in the case of any zoning order of the Administrator, the section states merely that "the validity" of the order may be reviewed.

The problems arising may be analyzed in terms of the following alternatives: (a) If the fifth amendment does not require compensation to be made to either type of landowner, then the silence of the provisions with respect to owners who are merely restrained is proper, but the provision for compensation for owners of existing obstructions is constitutionally unnecessary.

(b) If the fifth amendment requires compensation to be made to all landowners who are in any way affected by the orders, the provision for compensation to all owners of existing obstructions is proper, but, insofar as the provisions are intended to withhold compensation from those owners who are merely restrained, they do not adequately meet the requirements of the fifth amendment.

(c) If in the case both of owners of existing obstructions and of owners who are merely restrained in the use of their land the question whether compensation is required is one of degree and to be decided on the basis of facts in each case, section 3107 (a), insofar as it is intended to provide for compensation to all owners ordered to alter existing obstructions, goes beyond the requirements of the fifth amendment, and, insofar as compensation is intended to be withheld from owners who are merely restrained by the height restrictions, the provisions do not adequately meet the requirements of the fifth amendment. (a) If the fifth amendment requires compensation in every case to a landowner who is required to alter an existing obstruction but requires no compensation in any case where a land owner is merely restrained in the use of his land, the provisions as they now stand adequately meet the constitutional requirement.

In order to be quite safe constitutionally it is suggested that alternative (c) be adopted as the basis for legislation. The cases which have been discussed will be further considered with this alternative in mind.

When this question is presented to the courts, they will have available two and possibly three lines of analogy from which to draw. They might choose to follow the analogy of the cases involving damages resulting to riparian property owners as a matter of Federal regulation and development of navigable waters under the commerce clause. Again, they may follow the analogy of the cases in which the damage to private property resulted from an exercise of a Federal power other than that over navigable waters, for example, the cases of Peabody v. United States and Portsmouth v. United States, discussed in part II, A, supra, in which it was held that whether a "taking" occurred as a result of firing artillery over the plaintiff's land was a question of degree. Finally, because the proposed enactment is essentially in the nature of a zoning provision, the courts may feel that the closest analogy and the one to be followed is that afforded by the cases involving municipal zoning laws enacted in the exercise of the States's police powers. The probability and the effect of the Court's applying each of these possible analogies will now be considered.

If there were definite assurances that the analogy of the cases dealing with regulation of navigable waters would be followed, the provision for compensation. With a qualification which will be later explained, could be eliminated. It is assumed that in applying this analogy the Court would hold property interests of land owners in the vicinity of airports, from the standpoint of the conflicting interest of the Government in removing and prohibiting obstructions to air navigation, to be precisely the same as those of owners of riparian lands on navigable streams. Accordingly, there would be translated from the field of regulation of water navigation the doctrine that one who owns riparian land holds it subject to "the servitude in respect of navigation" "created in favor of the Federal Government by the Constitution." This doctrine originated in the Court's desire to save the Federal Government harmless from liability to private persons for damages caused by its development of water transportation. The development of water transportation undoubtedly was and is an objective of vital importance to the people as a whole, and to the extent that the application of this doctrine has encouraged such development, the policy promoted has been entirely salutary. But the soundness of this policy should not disguise

the fact that the doctrine is nothing more than a fiction invented in order to allow the Government to destroy private property with impunity. Clearly, riparian owners have made no individual grants of such servitudes to the Government, and no mention of a grant of such interests by the people is to be found anywhere in the Constitution. Indeed, it was not definitely known until the decision of Gibbons v. Ogden (9 Wheat. 1, 6 L. Ed. 23) in 1824, whether Congress under the commerce clause could regulate navigation at all. But fiction or not, the doctrine is now firmly imbedded in interstate commerce doctrine and its result has been to allow the Government, in the development of water transportation, without payment of any compensation to property owners, to restrain the use of riparian lands adjoining navigable waters, to inflict heavy damage on such lands, and even to destroy them altogether.

It will be recalled that with respect to lands adjoining navigable streams, it was declared only in the decision of United States v. Linah (188 U. S. 445), supra, part II, B, that payment of compensation was required by the fifth amendment, but the Linah case was expressly overruled in United States v. Chicago, etc., R. Co. (312 U. S. 592), supra, id. To the extent, however, that the principle expressed in United States v. Cress (243 U. S. 316), supra, part II, B has not been weakened or destroyed by the extremely broad definition of "navigability" expressed in the Appalachian case (311 U. S. 377), supra, id., the Government is required to make just compensation for damages to property adjoining a nonnavigable, as distinguished from a navigable, steam. If it were certain that this line of cases would be followed in the air-transportation field, then, the Cress case conceivably might be taken for authority that a property owner not situated in the vicinity of an airport would have to be compensated, although other property owners would not.

If the courts were to follow this analogy to its fullest extent, they would hold that all property in the vicinity of airports is subjected to a servitude in favor of the Federal Government, and since in restricting the use or ordering the alteration of such property the Government was not going beyond the assertion of a preexisting right which had been conferred upon it by the Constitution, the landowner could not be heard to complain that his property in any instance had been taken as a result of the exercise of the Government's easement.

If, then, zoning provisions of the present type were framed with the expectation that the courts would follow the water analogy throughout, no provision for compensation would have to be made with respect to owners in the vicinity of landing areas.

It is, of course, far from certain that the courts will follow the navigable-waters analogy to the fullest extent. While the policy of encouraging the development of air transportation is fully as important as was that of developing water navigation when the fiction of "servitude" was invented, there is nevertheless a disturbing element in the prospect that any property owner, no matter where he is situated within the United States, is at all times fully enjoying his property only at the sufferance of Congress and only upon condition that an airport is not constructed upon an adjoining tract. The concept of the incidents of riparian ownership is in a number of important respects unique. The location of riparian lands is determined by nature and not by the designation of a legislative body, and hence the concept of "riparian land" carries the idea of a stable and practically unchanging location, except as that location may be varied by nature. As has been stated, moreover, the riparian owner enjoys a unique status in the law of real property, and the peculiar benefits and burdens of his ownership have been specially treated and quite rigidly defined in a line of decisions extending back through centuries. It seems reasonable, therefore, that one who acquires or continues to hold land on a navigable stream should hold it subject to the conditions, including a "servitude" in favor of the Federal Government, which the courts have long stated to exist as special incidents of such ownership, and the argument of the court in Union Bridge Co. v. United States (204 U. S. 364), part II, B, supra, can be plausibly made:

It must be taken, upon principle, not only that the company when exerting the power conferred upon it by the State, did so with the knowledge of the paramount authority of Congress to regulate commerce among the States, but that it erected the bridge subject to the possibility that Congress might, at some future time, when the public interest demanded, exert its power by appropriate legislation to protect navigation against unreasonable obstructions.

provisions are silent, however, with respect to the question of whether compensation is to be paid to landowners who are not required to alter existing obstructions, but are only limited in the use of their land by the maximum height restrictions imposed. While judicial review is provided by section 3106 in the case of any zoning order of the Administrator, the section states merely that "the validity" of the order may be reviewed. The problems arising may be analyzed in terms of the following alternatives: (a) If the fifth amendment does not require compensation to be made to either type of landowner, then the silence of the provisions with respect to owners who are merely restrained is proper, but the provision for compensation for owners of existing obstructions is constitutionally unnecessary.

(b) If the fifth amendment requires compensation to be made to all landowners who are in any way affected by the orders, the provision for compensation to all owners of existing obstructions is proper, but, insofar as the provisions are intended to withhold compensation from those owners who are merely restrained, they do not adequately meet the requirements of the fifth amendment.

(c) If in the case both of owners of existing obstructions and of owners who are merely restrained in the use of their land the question whether compensation is required is one of degree and to be decided on the basis of facts in each case, section 3107 (a), insofar as it is intended to provide for compensation to all owners ordered to alter existing obstructions, goes beyond the requirements of the fifth amendment, and, insofar as compensation is intended to be withheld from owners who are merely restrained by the height restrictions, the provisions do not adequately meet the requirements of the fifth amendment. (a) If the fifth amendment requires compensation in every case to a landowner who is required to alter an existing obstruction but requires no compensation in any case where a land owner is merely restrained in the use of his land, the provisions as they now stand adequately meet the constitutional requirement.

In order to be quite safe constitutionally it is suggested that alternative (c) be adopted as the basis for legislation. The cases which have been discussed will be further considered with this alternative in mind.

When this question is presented to the courts, they will have available two and possibly three lines of analogy from which to draw. They might choose to follow the analogy of the cases involving damages resulting to riparian property owners as a matter of Federal regulation and development of navigable waters under the commerce clause. Again, they may follow the analogy of the cases in which the damage to private property resulted from an exercise of a Federal power other than that over navigable waters, for example, the cases of Peabody v. United States and Portsmouth v. United States, discussed in part II, A, supra, in which it was held that whether a "taking" occurred as a result of firing artillery over the plaintiff's land was a question of degree. Finally, because the proposed enactment is essentially in the nature of a zoning provision, the courts may feel that the closest analogy and the one to be followed is that afforded by the cases involving municipal zoning laws enacted in the exercise of the States's police powers. The probability and the effect of the Court's applying each of these possible analogies will now be considered.

If there were definite assurances that the analogy of the cases dealing with regulation of navigable waters would be followed, the provision for compensation. With a qualification which will be later explained, could be eliminated. It is assumed that in applying this analogy the Court would hold property interests of land owners in the vicinity of airports, from the standpoint of the conflicting interest of the Government in removing and prohibiting obstructions to air navigation, to be precisely the same as those of owners of riparian lands on navigable streams. Accordingly, there would be translated from the field of regulation of water navigation the doctrine that one who owns riparian land holds it subject to "the servitude in respect of navigation" "created in favor of the Federal Government by the Constitution." This doctrine originated in the Court's desire to save the Federal Government harmless from liability to private persons for damages caused by its development of water transportation. The development of water transportation undoubtedly was and is an objective of vital importance to the people as a whole, and to the extent that the application of this doctrine has encouraged such development, the policy promoted has been entirely salutary. But the soundness of this policy should not disguise

the fact that the doctrine is nothing more than a fiction invented in order to allow the Government to destroy private property with impunity. Clearly, riparian owners have made no individual grants of such servitudes to the Government, and no mention of a grant of such interests by the people is to be found anywhere in the Constitution. Indeed, it was not definitely known until the decision of Gibbons v. Ogden (9 Wheat. 1, 6 L. Ed. 23) in 1824, whether Congress under the commerce clause could regulate navigation at all. But fiction or not, the doctrine is now firmly imbedded in interstate commerce doctrine and its result has been to allow the Government, in the development of water transportation, without payment of any compensation to property owners, to restrain the use of riparian lands adjoining navigable waters, to inflict heavy damage on such lands, and even to destroy them altogether.

It will be recalled that with respect to lands adjoining navigable streams, it was declared only in the decision of United States v. Linah (188 U. S. 445), supra, part II, B, that payment of compensation was required by the fifth amendment, but the Linah case was expressly overruled in United States v. Chicago, etc., R. Co. (312 U. S. 592), supra, id. To the extent, however, that the principle expressed in United States v. Cress (243 U. S. 316), supra, part II, B has not been weakened or destroyed by the extremely broad definition of "navigability" expressed in the Appalachian case (311 U. S. 377), supra, id., the Government is required to make just compensation for damages to property adjoining a nonnavigable, as distinguished from a navigable, steam. If it were certain that this line of cases would be followed in the air-transportation field, then, the Cress case conceivably might be taken for authority that a property owner not situated in the vicinity of an airport would have to be compensated, although other property owners would not.

If the courts were to follow this analogy to its fullest extent, they would hold that all property in the vicinity of airports is subjected to a servitude in favor of the Federal Government, and since in restricting the use or ordering the alteration of such property the Government was not going beyond the assertion of a preexisting right which had been conferred upon it by the Constitution, the landowner could not be heard to complain that his property in any instance had been taken as a result of the exercise of the Government's easement.

If, then, zoning provisions of the present type were framed with the expectation that the courts would follow the water analogy throughout, no provision for compensation would have to be made with respect to owners in the vicinity of landing areas.

It is, of course, far from certain that the courts will follow the navigable-waters analogy to the fullest extent. While the policy of encouraging the development of air transportation is fully as important as was that of developing water navigation when the fiction of "servitude" was invented, there is nevertheless a disturbing element in the prospect that any property owner, no matter where he is situated within the United States, is at all times fully enjoying his property only at the sufferance of Congress and only upon condition that an airport is not constructed upon an adjoining tract. The concept of the incidents of riparian ownership is in a number of important respects unique. The location of riparian lands is determined by nature and not by the designation of a legislative body, and hence the concept of "riparian land" carries the idea of a stable and practically unchanging location, except as that location may be varied by nature. As has been stated, moreover, the riparian owner enjoys a unique status in the law of real property, and the peculiar benefits and burdens of his ownership have been specially treated and quite rigidly defined in a line of decisions extending back through centuries. It seems reasonable, therefore, that one who acquires or continues to hold land on a navigable stream should hold it subject to the conditions, including a "servitude" in favor of the Federal Government, which the courts have long stated to exist as special incidents of such ownership, and the argument of the court in Union Bridge Co. v. United States (204 U. S. 364), part II, B, supra, can be plausibly made:

It must be taken, upon principle, not only that the company when exerting the power conferred upon it by the State, did so with the knowledge of the paramount authority of Congress to regulate commerce among the States, but that it erected the bridge subject to the possibility that Congress might, at some future time, when the public interest demanded, exert its power by appropriate legislation to protect navigation against unreasonable obstructions.

In conclusion, the following comments on the proposal in H. R. 1012 are offered. If the "servitude" doctrine is not to be applied, just compensation will be held to be payable to the land owners affected regardless of whether the property is in the vicinity of a landing area or elsewhere, where the injury is in fact so severe as to lead the courts to regard it as a "taking." This will be true both where the alteration of existing structures is required and where the Administrator's order merely restricts the owner in the use of his land. However, compensation would probably not be required in all situations. Hence, it would seem that the proposed title would be improved by a provision leaving to the initial discretion of the Administrator the decision whether any compensation is payable in a particular situation (i. e., whether a "taking" has occurred), and in the event that it should be decided by him that compensation is due, the amount which must be paid under the fifth amendment, with provision for judicial review.

DISCUSSION OF LIABILITY

(There follows a discussion of a proposed uniform State law on the subject of liability. The discussion was prepared in 1938 for the use of a committee of the Air Transport Association of America. is submitted for the information of the committee because of the bearing of data therein upon the liability provisions of H. R. 1012:)

INTRODUCTORY

The purpose of this paper is to analyze the question of civil aviation liability with a view to determining what type of legislation is desirable to meet the problem. We shall discuss the matter particularly with reference to the proposed Uniform Aviation Liability Act and the effects which it will have if passed. After having gone through several drafts, the proposed Uniform Aviation Liability Act was approved by the National Conference of Commissioners on Uniform State Laws at their annual meeting held at Cleveland, Ohio, July 18-23, 1938. Promulgation to the States however, has been postponed until the Civil Aeronautics Authority has had an opportunity to study the problem.

I. THE THEORY OF THE PROPOSED UNIFORM AVIATION LIABILITY ACT

The proposed act covers (1) liability to passengers for injury or death, (2) liability for baggage, personal effects and goods shipped, (3) liability to persons upon the ground for injury or death, (4) liability for property damage on the ground, and (5) liability for and apportionment of liability arising from collisions of two or more aircraft. The act applies to all aircraft flying within the boundaries of the State, and in the case of passengers and baggage and goods carried it applies not only to injuries or loss occurring within the State but also whenever the contract of carriage is made in the State.

Generally speaking, the owner of aircraft carrying passengers for compensation is made absolutely liable for all injuries or deaths to passengers in the course of the carrier-passenger relation. The liability imposed by the act with regard to passengers appears to be exclusive. The amount of liability is determined by a schedule fixing a definite amount of recovery for a number of specified injuries. The amount fixed in case of death is $10,000. It is not entirely clear whether $10,000 is in all cases the largest amount any one person can recover for all injuries. It may be that where one person suffers several injuries he can recover more than $10,000. Compulsory insurance, a bond or cash deposit is required. If the required security is not carried, the limit of liability does not apply, and there is in addition a crminal penalty. The proposed act does not change the liability of owners of aircraft not carrying passengers for compensation except to make guest statutes apply to them, and does not require them to carry insurance covering liability to passengers.

Absolute liability is imposed upon owners of aircraft, carrying passengers or goods for compensation, for loss or damage to goods, baggage or personal effects. If the value of personal effects or baggage is not declared, recovery is limited to $100. Otherwise, there can be a recovery for the actual loss, limited only by the declared value. As to goods, there can always be a recovery in the amount of actual loss, except that when the value has been declared, the recovery cannot exceed the amount declared. The act does not apply to goods, bag